Agencies must redact exempt information, release rest
Exempt portions of a public document do not justify an agency's refusal to disclose an entire document, the West Virginia Supreme Court ruled in awarding attorneys fees to a plaintiff.

June 30, 2004 -- Citizens have an overall right to obtain public records even if portions of the requested records are exempt from disclosure, the West Virginia Supreme Court ruled last week in a case to decide whether attorneys fees should be awarded to a requester who was only partially successful in his request for records.

The court ruled June 23 that the burden is on government agencies to redact portions of documents that may be exempt under the state FOI Act and release portions that are not. The court also held that requesters who sue and are denied even redacted versions are entitled to a "Vaughn Index," an itemized explanation of why documents were denied.

"In response to a proper Freedom of Information Act request, a public body has a duty to redact or segregate exempt from non-exempt information contained within the public record(s) responsive to the FOIA request and to disclose the nonexempt information unless such segregation or redaction would impose upon the public body an unreasonably high burden or expense," Justice Robin Davis wrote.

Jeff Farley, a resident of Mullens, W.Va., brought suit against the city in 2002 for access to a list of those delinquent in paying business and occupation taxes, as well as a list of individuals who were delinquent in paying their garbage and sewage bills.

After the city denied Farley's requests, he sued in Circuit Court in Pineville. Judge Michael Thornsbury held that Farley was entitled to a list showing business and occupation taxes owed, but not the names of those who owed them. The judge further ruled that the names and any identifying information relating to those who owe garbage and sewage fees are exempt under the state open records law. However, the total amount owed is public information.

Finally, Farley was denied $6,300 in attorneys fees because he had not "substantially prevailed," Thornsbury wrote.

It was the matter of attorneys fees that was appealed to the state Supreme Court.

In a 4-1 decision, the court rejected Thornsbury's argument and found that requesters who successfully sue for public records are entitled to attorney's fees, even when only a portion of the requested records are disclosed under the state's FOI Act.

The decision also clarified confusion over when a government agency is required to provide the requester the "Vaughn Index," an itemized list that explains the exemptions under which each document is being withheld. Public agencies do not have to provide the "Vaughn index" unless a lawsuit is filed.

"If the public body refuses to provide redacted or segregated copies because the process of redacting or segregating would impose an unreasonably high burden or expense, the public body must provide the requesting party a written response that is sufficiently detailed to justify refusal to honor the FOIA request on these grounds," Davis wrote.

Davis further encouraged agencies to always provide a "Vaughn index" to avoid litigation.

Jason Huber, attorney for Farley, said the ruling is significant because "it clarifies the burden is on the government agency at the initial FOIA request stage" to explain what exactly is exempt under the state open records law.



(Farley v. Worley; Counsel: Jason E. Huber, Foreman & Huber, Charleston, W.Va.) -- AV